Case No.: CH/00/5408
Applicant: Mina SALIHAGIC
Respondent Party: Federation of Bosnia and Herzegovina
Date Delivered: 11 May 2001

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

In 1986 the applicant obtained the occupancy right over an apartment ("first apartment") in Tesanj, which was allocated to her by her employer. Later, the applicant moved from the first apartment into another apartment ("second apartment") in Tesanj. In 1993 the applicant submitted a request to the owner of both apartments to transfer her occupancy right from the first to the second, which had been declared abandoned. On 2 February 1998 the applicant's employer allocated the second apartment to her and, on 3 February 1998, the Municipal Department for Urban Planning and Housing Affairs of the Municipality Tesanj ("Municipal Department") confirmed the applicant's right to use it. On 17 February 2000 the applicant concluded a purchase contract with her employer over the second apartment, and the applicant's ownership of the second apartment was registered in the land books.

On 4 October 1999, the applicant had lodged a request to repossess the first apartment. On 20 June 2000, the Municipal Department issued a procedural decision allowing the applicant's re-instatement into that apartment. On the same day, the Municipal Department also issued a decision annulling its previous decision of 16 February 2000 and terminating the applicant's right to temporary use of the second apartment. The applicant lodged an appeal against this decision on 30 June 2000. On 10 July 2000 the Municipal Department issued a decision allowing the eviction of the applicant from the second apartment. The Chamber issued an order for provisional measures prohibiting the eviction and the applicant, in fact, was not evicted. On 26 March 2001, the Ministry for Urban Planning, Transport, Communication and Environment of Zenica-Doboj Canton rejected the applicant's appeal of the annulment of the Municipal Department decision of 20 June 2000 on the use of the second apartment.

Admissibility

First, noting that the applicant had made attempts to remedy her situation and that they had remained unsuccessful, the Chamber considered all available and effective remedies exhausted. Second, noting that the applicant had not supplied any evidence to indicate that she sought to make use of any remedy to which Article 6 would be applicable, the Chamber declared the application inadmissible as manifestly ill-founded insofar as it concerned the applicant's alleged violation of Article 6. Third, the Chamber concluded that the application was admissible insofar as it alleged violations of the applicant's right to respect for her home and her right to peaceful enjoyment of her possessions, as guaranteed by Article 8 and Article 1 of Protocol No. 1.

Merits

Article 1 of Protocol No. 1 to the Convention

The Chamber noted that, whether or not the purchase of the second apartment was in accordance with the law, the applicant was the registered owner of the second apartment and was entitled as a matter of Federation law to exercise the registered ownership rights. As no emergency situation could have justified the eviction of the registered owner, and that there was no other person seeking her eviction or claiming ownership rights to the second apartment, no provision in the domestic law could be regarded as a basis for the eviction. In addition, as the applicant had vacated the first apartment long before, she could not any longer be considered as a multiple user. Thus the Chamber found that the attempted eviction of the applicant was contrary to the law and that there was a violation of the applicant's right to peaceful enjoyment of her possessions as guaranteed by Article 1 of Protocol No. 1.

Article 8 of the Convention

For the same reasons as given in the context of its examination of the case under Article 8, the Chamber found that the interference with the applicant's right to respect for her home was not "in accordance with the law," and thus that there was a violation of the right of the applicant to respect for her home as guaranteed by Article 8.

Remedies

The Chamber ordered the Federation to take all necessary steps to secure the applicant's ownership of the second apartment and to prevent her eviction as long as the applicant is registered in the land book as the owner, and to pay the applicant KM 1,000 in respect of non-pecuniary damage.

Dissenting/Concurring Opinions

Mr. Manfred Nowak attached a partly dissenting opinion in which he argued that the Chamber's order to secure the applicant's ownership of her apartment and to prevent her eviction should not have been qualified by the limitation, "as long as the applicant is registered in the land books as the owner," which he felt seemed to encourage the Federation to pursue its legal actions aimed at depriving the applicant of her registered ownership rights.

Decision adopted 8 May 2001
Decision delivered 11 May 2001